Krieg, Robert A. v. Seybold, Wayne

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2322
ROBERT A. KRIEG and LOCAL NO. 3063
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,
Plaintiffs-Appellants,
v.
WAYNE SEYBOLD, JACK ANTROBUS,
and CITY OF MARION, INDIANA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 04 C 430—William C. Lee, Judge.
____________
ARGUED JANUARY 17, 2007—DECIDED MARCH 21, 2007
____________
Before FLAUM, KANNE, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. On October 28, 2004, Jack
Antrobus, the Superintendent of Marion, Indiana’s
Streets and Public Works Department administered a
random drug test to all employees in the Streets and
Sanitation Department. Robert Krieg, a Streets and
Sanitation Department employee, refused to be tested, and
Antrobus ordered him to leave the building. On November
15, 2004, the City’s Board of Public Works voted to termi-
nate Krieg’s employment. Krieg filed suit arguing that the
2 No. 06-2322
drug test violated his Fourth Amendment rights and that
the City terminated him without due process. The dis-
trict court granted summary judgment to the City, and
Krieg appeals. For the following reasons, we affirm the
district court’s judgment.
I. BACKGROUND
The City of Marion, Indiana hired Robert Krieg as a
driver/laborer in its Streets and Sanitation Department
in 1985. During his employment, Krieg was a member of
American Federation of State, County and Municipal
Employees Local No. 3063 (“the Union”).
Prior to 2001, the Streets and Sanitation Department
gave its employees prior notice of any drug testing.
However, on October 28, 2002, the Union and the City
entered into a Collective Bargaining Agreement (“CBA”)
for 2003-2004, that provided as follows:
All Streets and Sanitation workers shall comply with
the City’s Drug and Alcohol Policy. Drug/Alcohol
Testing may be conducted on Streets and Sanitation
workers post-accident, upon reasonable suspicion or
randomly as per the current City policy. A minimum of
50% of the employees shall be tested at least once
a year.
The City’s Personnel Policies Handbook then in effect
provided that the department heads could drug test all
“safety-sensitive” employees, defined as “all positions
which require an employee to operate a commercial motor
vehicle and/or hold a commercial driver’s license.”
The CBA required all newly-hired employees in the
Streets and Sanitation Department to obtain a valid
Commercial Drivers License (“CDL”) within six months
of being hired. However, employees who were hired prior
No. 06-2322 3
to September 10, 2000 were exempt from this require-
ment under a grandfather clause in the agreement.1 Krieg
opted not to obtain a CDL, which prevented him from
operating several larger pieces of heavy equipment used by
other Streets and Sanitation Department employees.
Nevertheless, Krieg still operated a one-ton dump truck,
a dump truck with a plow, a front end loader, and a
backhoe as part of his regular job duties. He also regularly
patched holes in city streets, sealed cracks, plowed snow,
loaded salt or sand into City vehicles, and directed traffic.
Krieg was never involved in any accidents during his
employment.
In December 2002, Krieg submitted to an unannounced
drug test that came back positive for marijuana. The
Department suspended Krieg for thirty days and required
him to undergo drug counseling. Krieg filed a grievance
through the Union, arguing that as a non-CDL holder, the
City should not have subjected him to urinalysis with-
out probable cause. The City eventually reinstated Krieg
after conceding that his testing was improper.
On June 7, 2004, after Wayne Seybold took over as the
City’s new Mayor, the City unilaterally adopted a new
Personnel Policy and Procedures Manual, which provided
for random, unannounced drug testing for “[e]mployees
in safety-sensitive positions.” The manual stated that “a
safety sensitive function is any duty related to the safe
operation of City equipment during any period in which
the City employee is actually performing, ready to perform,
or immediately available to perform any safety sensitive
functions.” The Manual also provided that any employee
“who refuses to comply with a request for testing shall be
removed from duty and their employment terminated.”
1
In January 2000, there were forty employees in the Streets
and Sanitation Department, eight of whom did not have CDLs.
4 No. 06-2322
The Union filed a grievance and complained that the
City did not negotiate with it in implementing the new
personnel manual. The Union employees signed docu-
ments to indicate that they received the handbook, but
specifically withheld their signatures from any language
stating that by receiving the handbook they agreed to its
terms.
On October 28, 2004, Antrobus informed the Streets
and Sanitation Department employees, with the excep-
tion of Antrobus’s personal secretary, that they would be
subjected to a drug test administered that day. Krieg
refused to take the drug test. Antrobus warned Krieg
that he could be fired for refusing to submit to the urinaly-
sis, but Krieg again refused. Antrobus told Krieg to leave
the building because he was no longer employed. Krieg
went to a telephone in the building and called his attorney.
Antrobus again ordered Krieg to leave the building and
threatened to call the police. Antrobus called the police,
and Krieg waited for them outside of the building by his
car. While they were waiting for the police, Krieg asked
Antrobus if he was fired. Krieg testified that Antrobus
said yes. Antrobus testified that he said, “I have to take
you to the Board of Works. They will make the decision.”
When the police arrived, they told Krieg to leave the
premises, and he left.
The following day, Steve Johnson, the Union steward,
filed an official grievance on Krieg’s behalf, alleging
“disparaging treatment of Robert Krieg and any and all
applicable violations of the contract” and requesting
reinstatement. Antrobus rejected the request for reinstate-
ment. On November 1, 2004, Darren Reese, the City’s
Human Resources Director, sent Krieg a letter stating
that because Krieg refused to submit to the mandatory
drug screen, Reese intended to recommend Krieg’s termi-
nation to the Board of Public Works (“the Board”) at its
November 15 meeting.
No. 06-2322 5
On November 15, 2004, the Board held its regularly
scheduled meeting, which Antrobus and Johnson both
attended. At his attorney’s advice, Krieg did not attend the
meeting. He concedes, however, that he had an opportu-
nity to attend the meeting, present evidence, and have an
attorney or a union representative represent him. After
hearing statements about the incident, the Board voted
to terminate Krieg’s employment.
On November 17, 2004, Krieg and the Union filed a
complaint in district court under 42 U.S.C. § 1983, alleging
violations of the Fourth and Fourteenth Amendments. On
December 1, 2005, both parties filed motions for summary
judgment. On April 3, 2006, the district court denied
Krieg’s motion and granted summary judgment in favor
of the City. Krieg and the Union now appeal.
II. DISCUSSION
First, Krieg claims that the City’s drug testing policy as
applied to non-CDL employees violates the Fourth Amend-
ment. Second, Krieg alleges that he was terminated in
violation of his due process rights. This Court reviews de
novo the district court’s grant of summary judgment to the
City. Employers Mut. Cas. Co. v. Skoutaris, 453 F.3d 915,
923 (7th Cir. 2006). Summary judgment is proper if the
“pleadings, depositions, answer to interrogatories, and
admissions on file together with the affidavits, if any, show
that there is no genuine issues as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Because this case
involves cross-motions for summary judgment, the Court
must construe all inferences in favor of the party against
whom the motion was granted. Employers Mut. Cas. Co.,
453 F.3d at 923. Accordingly, we review the record in the
light most favorable to Krieg, drawing all reasonable
inferences from those facts in his favor, and reversing if
6 No. 06-2322
we find a genuine issue concerning any fact that might
affect the outcome of the case. Id.A. Waiver
As a preliminary matter, the City contends that Krieg
cannot challenge the constitutionality of the drug testing
policy because the Union consented to drug testing in the
2003-2004 CBA. The CBA permitted drug testing under
“the current policy,” which allowed the City to test all
“safety sensitive” employees. The policy stated, “In accor-
dance with [Department of Transportation]/[Federal
Highway Administration] regulations, included in this
classification of safety-sensitive positions are all positions
which require an employee to operate a commercial motor
vehicle and/or hold a commercial driver’s license.” Krieg
maintains that because he did not possess a CDL and he
did not drive “commercial motor vehicles” as defined by
federal law, he did not consent to drug testing under the
2003-2004 CBA.
The Federal Omnibus Transportation Employee Testing
Act of 1991 defines a “commercial motor vehicle” as a
vehicle that:
A) has a gross vehicle weight rating or gross vehicle
weight of at least 26,001 pounds, whichever is greater,
or a lesser gross vehicle weight rating or gross vehicle
weight the Secretary of Transportation prescribes
by regulations, but not less than a gross vehicle
weight rating of 10,001 pounds;
B) is designed to transport at least 16 passengers
including the driver; or
C) is used to transport material found by the Secretary
to be hazardous . . . .
No. 06-2322 7
49 U.S.C. § 3101(4). The City acknowledges that Krieg did
not operate “commercial motor vehicles” as defined above,
but contends that the term as used in its drug testing
policy was not restricted to the federal definition. The City
maintains that “commercial motor vehicle” should be
interpreted broadly to encompass the types of vehicles
that Krieg regularly operated. We disagree.
Although the CBA does not define the term “commercial
motor vehicle,” the City’s policy clearly refers to federal
law in defining safety sensitive positions. The opening
clause of the sentence states that the definition of safety
sensitive employees, i.e., individuals who operate com-
mercial motor vehicles, must be “in accordance with
[Department of Transportation]/[Federal Highway Admin-
istration] regulations.” This suggests that the Union did
not consent to the drug testing of non-CDL holders. In any
event, waiver of a constitutional right must be clear and
unmistakable, Chaney v. Suburban Bus. Div. of Regional
Transp., 52 F.3d 623, 630 (7th Cir. 1995) (waiver will not
be assumed by a CBA where it is not explicit), and it is not
under these facts.
B. Fourth Amendment
Krieg challenges the constitutionality of the City’s drug
testing policy as applied to non-CDL employees. Drug
testing is a search within the meaning of the Fourth
Amendment because it intrudes upon an individual’s
expectation of privacy. Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 652 (1995). As a general rule, drug testing
must be based upon individualized suspicion or wrongdo-
ing to be considered reasonable. Chandler v. Miller, 520
U.S. 305, 313 (1997). However, the Supreme Court has
held that random drug testing is constitutionally permissi-
ble when it “serves special governmental needs . . . .” Nat’l
Treasury Employees Union v. Von Raab, 489 U.S. 656, 665
8 No. 06-2322
(1989). The Court has explained that when such a special
need exists, courts should “balance the individual’s privacy
expectations against the government’s interests to deter-
mine whether it is impractical to require a warrant or
some level of individualized suspicion in the particular
context.” Id.
1. Special Need
The Supreme Court has held that a special need exists
when the government employee subjected to random drug
testing holds a “safety sensitive” position. Skinner, 489
U.S. at 630. To determine whether an employee occupies
a safety sensitive position, courts must inquire whether
the employee’s duties were “fraught with such risks of
injury to others that even a momentary lapse of attention
[could] have disastrous consequences.” Id. at 628.
Courts have widely permitted random drug testing of
public employees who work with large, mobile equipment.
Random drug testing is permitted in the aviation industry,
including testing of air traffic controllers, aircraft mainte-
nance personnel, flight crew members, and flight atten-
dants. See, e.g., Bluestein v. Dept. of Transp., 908 F.2d 451,
457 (9th Cir. 1990). Courts have also upheld random drug
testing for employees in the rail, highway, and water
transportation industries; including railroad safety
inspectors, highway and motor carrier safety specialists,
and lock and dam operators. See, e.g., Am. Fed’n of Gov’t
Employees v. Skinner, 885 F.2d 884, 892 (D.C. Cir. 1989).
A number of courts have also upheld drug testing of heavy
equipment operators, such as forklift operators, tractor
operators, engineering operators and crane operators
because of the threat to other persons in the area. See, e.g.,
Am. Fed. of Gov’t Employees v. Cheney, No. C-88-3823-
DLJ, 1992 WL 403388 *13 (N.D. Cal. Aug. 14, 1992); Plane
v. United States, 796 F. Supp. 1070, 1075-77 (W.D. Mich.
No. 06-2322 9
1992); Middlebrooks v. Wayne County, 521 N.W.2d 774,
779 (Mich. 1994).
At the same time, courts have recognized an outer limit
on the nature of the safety threat that justifies random
drug testing. See e.g., Burka v. N.Y. City Transit Auth.,
751 F. Supp. 441, 443-44 (S.D.N.Y. 1990) (holding that
elevator operators, carpenters, masons, plumbers, sign
painters, and power distribution maintainers are not in
safety sensitive positions); Nat’l Treasury Employees Union
v. Watkins, 722 F. Supp. 766, 770 (D. D.C. 1989) (granting
a preliminary injunction against random drug testing of
Department of Energy employees whose job duties in-
cluded driving cars and vans with documents); Nat’l
Treasury Employees Union v. Lyng, 706 F. Supp. 934, 947
(D.D.C. 1988) (granting a preliminary injunction to
Department of Agriculture employees who drove a daily
shuttle bus, a mail van, and passenger cars).
After reviewing the record, we hold that Krieg per-
formed a safety sensitive job. Krieg testified that he
regularly operated a one-ton dump truck, a dump truck
with a plow, a front end loader, and a backhoe. These large
vehicles and equipment present a substantial risk of
injury to others if operated by an employee under the
influence of drugs or alcohol. Moreover, they are signifi-
cantly larger and more difficult to operate than the vans
or passenger cars operated by the plaintiffs in either
Watkins or Lyng. Additionally, Krieg did not operate
these vehicles in rural areas away from traffic and pedes-
trians. Rather, he operated them in the City near other
vehicles and pedestrians. Consequently, any reasonable
jury would conclude that Krieg’s job duties were “fraught
with such risks of injury to others that even a momentary
lapse of attention [could] have disastrous consequences.”
Skinner, 489 U.S. at 628.
10 No. 06-2322
2. Balancing Test
After we determine that a special need exists, the Court
engages in a balancing test between the “intrusion on the
individual’s Fourth Amendment interests” and the
search’s “promotion of legitimate governmental interest.”
Vernonia, 515 U.S. at 653. This Court considers the
following factors: 1) the nature of the privacy interest upon
which the search intrudes, 2) the character of the intru-
sion on the individuals’ privacy interest, 3) the nature and
immediacy of the governmental concern at issue, and
4) the efficacy of the particular means used to address
the problem. Joy v. Penn-Harris-Madison Sch. Corp., 212
F.3d 1052, 1059 (7th Cir. 2000).
Under the first factor, the Court must consider the
nature of Krieg’s privacy interest. Krieg argues that he did
not have a diminished expectation of privacy because he
chose not to obtain a CDL. Courts have held, however, that
employees subjected to drug testing in the past have a
diminished expectation of privacy. See, e.g., Int’l Bhd. of
Teamsters v. Dept. of Transp., 932 F.2d 1292, 1302 (9th
Cir. 1991). Neither party disputes the fact that Krieg had
previously submitted to drug testing throughout his
employment with the Department. Indeed, he tested
positive for marijuana in December 2002. Accordingly,
Krieg had a diminished expectation of privacy.
The second factor requires the Court to assess the
character of the intrusion on Krieg’s privacy. Krieg asserts
that the intrusion was severe because although the City
set forth specific testing requirements, Antrobus did not
follow those procedures. The City’s policy provided that
random, suspicionless drug testing would be “spread
throughout the year” and that the City would utilize a
“scientifically valid method” for selecting employees to be
tested to “ensure that each covered employee will have
an equal chance of being selected each time selections
No. 06-2322 11
are made.” Krieg contends that testing every employee
in the Streets and Sanitation Department violated the
policy. Despite Krieg’s protestations, Antrobus did follow
the City’s policy. The drug test was random because
Antrobus chose a random date on which to administer it,
and everyone in the department had the same likelihood of
being selected for testing.
Krieg concedes that the City has a compelling interest
in ensuring that its employees who regularly drive large
equipment around the City are not impaired by drugs or
alcohol. However, he argues that the government’s con-
cern is not immediate because the City did not establish
a history of drug-related accidents by non-CDL holders.
However, the Supreme Court “has not required a particu-
larized or pervasive drug problem before allowing the
government to conduct suspicionless drug testing.” Bd. of
Ed of Ind. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 835
(2002).
Finally, as to the efficacy of the means, Krieg maintains
that in the absence of a history of drug-related accidents,
the City was required to demonstrate that it could not
address the problem by observing Department employees
for suspicious behavior. Although Von Raab noted the
difficulty of subjecting customs officials to day-to-day
scrutiny, neither the Supreme Court nor this Court has
ever held that this showing is a requirement of impos-
ing random drug tests. 489 U.S. at 674.
After balancing the applicable factors, we conclude that
the City has shown a governmental interest sufficient to
justify submitting Krieg to random, suspicionless drug
testing.
B. Due Process
Krieg next contends that the City deprived him of his
job without due process of law. A plaintiff alleging a due
12 No. 06-2322
process violation must demonstrate 1) that he had a
property interest and 2) that he was deprived of this
interest without due process of law. Bishop v. Wood, 426
U.S. 341, 343 (1976). Krieg bears the burden of proving
that he had a property interest in his job arising out of a
state statute, state or municipal regulations, or a contract
with a public entity. Ulichny v. Merton Cmty. Sch. Dist.,
249 F.3d 686, 700 (7th Cir. 2001). Krieg argues that the
CBA provided him with a property interest in his job for
2003-2004.
The Supreme Court, the Seventh Circuit, and Indiana
courts have all held that a collective bargaining agree-
ment does not create an employment contract except in
rare cases. See J.I. Case Co. v. NLRB, 321 U.S. 332, 334-35
(1944) (holding that the result of a collective bargaining
agreement is not “a contract of employment except in
rare cases; no one has a job by reason of it and no obliga-
tion to any individual ordinarily comes into existence from
it alone”); Young v. N. Drury Lane Prods., Inc., 80 F.3d
203, 206 (7th Cir. 1996) (stating that “a labor agreement is
not a contract of employment; employees are hired sepa-
rately and individually”); Ritter v. Stanton, 745 N.E.2d
828, 841 (Ind. Ct. App. 2001) (stating that “although
collective bargaining agreements can be considered
contracts relating to employment, they do not necessarily
create a ‘contract of employment’ within the strict mean-
ing of the term”). Accordingly, without some specific
promise of employment, the CBA did not provide Krieg
with a property interest.
Krieg maintains that the CBA’s just cause provision
gave him a property interest. The clause is located in the
section that governs seniority and states, “The seniority
of an employee shall terminate . . . [w]hen he/she is
discharged for just cause.” That provision does not state
that employees may be discharged only for just cause.
Rather, it merely indicates that those employees dis-
No. 06-2322 13
charged for just cause lose their seniority. Because there
is no clause stating that employees may be discharged
only for just cause, Krieg was an at-will employee who
did not have a property interest in his job. The district
court correctly granted summary judgment in the City’s
favor.
III. CONCLUSION
For the above stated reasons, we AFFIRM the district
court’s judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-07